Opinion
No. 06-04-00058-CR
Submitted: January 12, 2005.
Decided: February 8, 2005. DO NOT PUBLISH.
On Appeal from the 5th Judicial District Court, Bowie County, Texas, Trial Court No. 03F0718-005.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Jullian Bolton appeals his conviction by a jury for burglary of a habitation. The jury assessed punishment at twenty-five years' imprisonment. Bolton's sole issue on appeal is whether the evidence is factually sufficient to support the jury's verdict. We affirm the judgment. Christopher Jones and several friends, including Gaylon Dixon, were playing cards, drinking, and watching television in Jones' residence when four or five persons wearing masks forcibly entered Jones' house and robbed them at gunpoint. Jerial Williams testified that there were five burglars, who were wearing masks, and that all of them had guns. Williams testified that they forced him and his girlfriend to disrobe and that they beat him. Kelli Jackson, Williams' girlfriend at the time, testified the burglars forced her to disrobe when they found out she had no money. The burglars hit Williams in the eye with a flashlight. Eventually, Williams was able to leave the house and run to a neighbor's house. The neighbor called the police. While responding to the dispatch concerning a burglary in process, Officer Jeff Savage observed a vehicle similar to the description in the dispatch call of the suspect's car and attempted to stop the driver of the vehicle by activating his overhead lights. The driver did not stop and led Savage on a chase. Eventually, the driver pulled the vehicle to the side of the road, and five suspects exited and fled on foot into a nearby wooded area. Savage apprehended Bolton after a short pursuit on foot. When apprehended, Bolton had possession of Dixon's wallet, containing $400.00, and his cell phone. These items were located in Bolton's right back pants pocket. Bolton contends there is no direct evidence he committed burglary. Because the jury was not instructed on the law of parties and because none of the victims could identify Bolton as the burglar, Bolton claims the evidence is insufficient. According to Bolton, he cannot be held responsible for the actions of those whom he was simply accompanying that night. He argues that it was equally likely he was outside in the car, ignorant of the burglary, and therefore the evidence is factually insufficient. We disagree. In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond a reasonable doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App. 2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). Burglary may be proven with circumstantial evidence. Tabor v. State, 88 S.W.3d 783, 786 (Tex.App.-Tyler 2002, no pet.); Dixon v. State, 43 S.W.3d 548, 552 (Tex.App.-Texarkana 2001, no pet.). When there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference of guilt of the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 77 (Tex.Crim.App. 1983); Tabor, 88 S.W.3d at 786; Dixon, 43 S.W.3d at 552; Taylor v. State, 921 S.W.2d 740, 744 (Tex.App.-El Paso 1996, no pet.). The property must be recently stolen property, and the defendant must fail to make a reasonable explanation at the time of the arrest, to give rise to the inference. Hardesty, 656 S.W.2d at 77. In addition, the possession of the property must involve a distinct and conscious assertion of right to the property by the defendant. Tabor, 88 S.W.3d at 786. The inference of guilt is a "permissible inference," not a "true presumption." Hardesty, 656 S.W.2d at 77. "[T]he deduction of guilt drawn from a defendant's recent and unexplained possession of stolen property is merely a circumstance of guilt and is not conclusive." Id. Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the trier of fact. Dixon, 43 S.W.3d at 552. The sufficiency of the evidence, viewed as a whole, must still be examined under the applicable standards of appellate review. Id.; Buchanan v. State, 780 S.W.2d 467, 471 (Tex.App.-Dallas 1989, pet. ref'd). The indictment alleged Bolton committed burglary by entering the habitation of Jones without effective consent with the intent to commit robbery. A person commits the offense of burglary if, without the effective consent of the owner, the person: "enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault." Tex. Pen. Code Ann. § 30.02 (Vernon 2003). A person commits the offense of robbery, a felony, if in the course of committing theft and with intent to obtain or maintain control of the property, he or she: "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Pen. Code Ann. § 29.02 (Vernon 2003). The State presented sufficient evidence Bolton entered Jones' habitation without effective consent and with the intent to commit robbery. The State presented sufficient independent evidence that a burglary occurred. Dixon, Jones, Williams, Jackson, Juanetta Rogers, and Chris Lee all testified several masked men entered Jones' residence and robbed them at gunpoint. Both Dixon and Williams testified at trial there were five burglars. Savage observed five suspects exit the vehicle containing the suspects. Officer Billy McAnally responded and arrived at Jones' residence shortly after the burglars left. McAnally informed Savage a burglary had been committed. Jones testified he did not give consent for any of the burglars to enter his home that night. Because there is independent evidence of a burglary, Bolton's unexplained personal possession of recently stolen property will support an inference of guilt of the offense. Dixon testified he saw the police chasing the suspects a couple of minutes after the robbery ended. When arrested, Bolton did not have any of the guns in his possession. The record does not indicate if he had possession of a mask. Although the record does not indicate that any weapons or masks were found in the abandoned car, several weapons were found in various locations near where the car was abandoned. While none of the witnesses could identify Bolton as one of the burglars, several witnesses testified at trial that five persons committed the burglary. Bolton was one of these five suspects. A rational juror could have concluded beyond a reasonable doubt that Bolton was one of the five burglars. When apprehended by Savage minutes after the burglary, Bolton had Dixon's wallet and cell phone in his back pants pocket. Dixon identified the wallet and cell phone found in Bolton's pocket as his wallet and cell phone, that were stolen by the burglars. Thus, a permissive inference of guilt arose. Because the unexplained personal possession of recently stolen property allowed a permissive inference of guilt, the evidence is not so weak that the State could not have met its burden of proof. After weighing the evidence supporting and contravening the conviction, we conclude the contrary evidence is not so strong the State could not have met its burden of proof. The record does contain some contrary evidence. During cross-examination, McAnally testified some of the victims reported four burglars, while other victims reported five. Dixon's statement on the night of the burglary claimed there were only four burglars. However, Dixon testified at trial that there were five burglars and noted that he did not type the prior statement. Dixon stated the prior statement was in error. The contrary evidence is not strong enough to have prevented the State from meeting its burden of proof. Bolton cites Vodochodsky v. State, No. 74,129, 2004 Tex. Crim. App. LEXIS 663 (Tex.Crim.App. Apr. 21, 2004), in support of his argument that the evidence is insufficient. In Vodochodsky, the Texas Court of Criminal Appeals reversed a conviction for the murder of a police officer by a friend of the appellant where there was no evidence the appellant had acted with the intent to promote or assist in the murder despite his knowledge of his friend's plan to commit the murder. Id. We find Vodochodsky distinguishable. The State's theory of the case and the theory under which Bolton was charged were not that Bolton was an accomplice to the burglary, but rather that he was a participant in the burglary. After considering all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. The evidence is factually sufficient to support the conviction. We affirm the judgment.